More Fixed-Date Election Foibles: Delaying the Scheduled Federal General Election by One Week

The Current Fixed-Date Elections Law

Before the House of Commons lies a bill to amend the fixed-date elections law in sections 56.1 and 56.2 of the Canada Elections Act. It continues in the long tradition of tinkering and ad hockery that has long characterised the fixed-date election laws across Canada, and which I have chronicled over the last decade or so.

The current sections pertaining to fixed-date elections, which have shortened the maximum life of a parliament from five years to somewhere between four and five years (depending upon the date of the dissolution of the previous parliament), mandate that general elections shall occur on the third Monday of every fourth October after the previous general election. Since Parliament adopted these sections in 2007, only the elections of 2015 and 2019 have happened as scheduled. The previous general election fell in September 2021 after the Governor General granted Prime Minister Trudeau an early dissolution to the 43^rd Parliament; consequently, the schedule of the next general election has shifted to 20 October 2025. Incidentally, this also means that four years and one month, rather than four years, would pass between general elections – which is why I describe the fixed-date election law as having shortened the life of a parliament to somewhere between four and five years, rather than to precisely four years.

The current law as enacted in 2007 does, however, build in some flexibility if the scheduled polling day of the federal general election would come into “conflict with a day of cultural or religious significance or a provincial or municipal election,” in which case the Chief Electoral Officer could recommend that the Governor-in-Council choose another polling day – either the next day (the third Tuesday of the fourth October), or seven days later, the following Monday (the fourth Monday of the fourth October). But the Chief Electoral Officer must make this recommendation before 1 August in the year of the scheduled election. The Governor-in-Council, which is to say, the Governor General acting on the advice of Cabinet, would make the operative decision.

Powers of Governor General preserved

56.1 (1) Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.

Election dates

(2) Subject to subsection (1), each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election, with the first general election after this section comes into force being held on Monday, October 19, 2009.

Alternate day

56.2 (1) If the Chief Electoral Officer is of the opinion that a Monday that would otherwise be polling day under subsection 56.1(2) is not suitable for that purpose, including by reason of its being in conflict with a day of cultural or religious significance or a provincial or municipal election, the Chief Electoral Officer may choose another day in accordance with subsection (4) and shall recommend to the Governor in Council that polling day be that other day.

Publication of recommendation

(2) If the Chief Electoral Officer recommends an alternate day for a general election in accordance with subsection (1), he or she shall without delay publish in the Canada Gazette notice of the day recommended.

Making and publication of order

(3) If the Governor in Council accepts the recommendation, the Governor in Council shall make an order to that effect. The order must be published without delay in the Canada Gazette.

Limitation

(4) The alternate day must be either the Tuesday immediately following the Monday that would otherwise be polling day or the Monday of the following week.

Timing of proclamation

(5) An order under subsection (3) shall not be made after August 1 in the year in which the general election is to be held.[1]

So far, this procedure for delaying a federal general election has gone unused. Crucially, the Chief Electoral Officer must first make the recommendation; cabinet cannot make this decision to delay the election by either one day or seven days on its own.

Incidentally, even though the Interpretation Act says that “province” – and, presumably, also “provincial” – in these sorts of statutes shall be read to include both the provinces and territories, I wish that section 56.2(1) would simply say “a provincial, territorial, or municipal election” anyway.[2]

Bill C-65: More Tinkering and Ad Hockery

This chain of events and dependence upon the Chief Electoral Officer probably explains why the Trudeau government saw fit to include an ad hoc amendment to section 56.1 through section 5 of Bill C-65, the Electoral Participation Bill, on 20 March 2024.

5 Subsection 56.1(2) of the Act is replaced by the following:

Election dates

(2) Subject to subsection (1), each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election. However, if Monday, October 20, 2025 would be the day fixed for voting at a general election under this sub-section, that general election must instead be held on Monday, October 27, 2025.[3]

Instead of changing the date to the fourth Monday of every fourth October in general, this bill would carve out a specific exception for the fourth Monday of October 2025 alone. The Minister for Democratic Institutions, Dominic LeBlanc, issued a press release upon tabling the bill at First Reading in the House of Commons in March 2024, which explained that this provision would ensure that the fixed-date election would not fall on Diwali, a holy day for Hindus and Sikhs.

Ensuring an election is not held on a day of religious or cultural significance

Should a fixed date election be held in 2025, it would be held on Monday October 20th. However, many communities in Canada will be celebrating Diwali at this time. Therefore, a one-time change to the date is proposed so that the potential election would not conflict with Diwali. Instead, the election would be held the following Monday.[4]

Nowhere does Minister LeBlanc’s statement acknowledge that Parliament already included a provision within the fixed-date election law upon its original enactment back in 2007 to accommodate “a day of cultural or religious significance” by delaying the election by either one day or seven days. Surely the Chief Electoral Officer would keep track of holidays of the various religions in advance and trigger the existing procedure. Nowhere does the Privy Council Office explain why the Trudeau government believe that Parliament must wrest this discretion away from the Chief Electoral Officer and make the delay of seven days mandatory in the statute instead. Furthermore, this ad hockery toward the election scheduled for the third Monday of October 2025 implies that Parliament would then have to go back and re-examine the fixed-date elections law in advance of every single scheduled election, because other holy days over the years could well occur on the third Monday of every fourth October, and take away this discretion from the Chief Electoral Officer every time as required. This, in turn, raises the question of why Parliament even bothered to include the original provision back in 2007.

None of this makes sense on its face. Consequently, the explanation offered by MPs of all three opposition parties seems more plausible: the bill contains this ad hoc and probably redundant amendment to delay the election of 2025 from the third to the fourth Monday of October because the 80-odd MPs first elected in the general election held on 21 October 2019 would only become eligible for their parliamentary pensions after the requisite six years of service, which falls on 21 October 2025. If the next federal general election were held as scheduled on 20 October 2025, then dozens of MPs would miss qualifying for these luxurious, lifetime parliamentary pensions by only one day! We certainly cannot allow that.

Kevin Lamoureux, the Parliamentary Secretary to the Leader of the Government in the House of Commons, introduced the bill at Second Reading on 31 May 2024 and did not think that this provision delaying the fixed-date election by seven days merited mention at all.[5] Bloc MP Xavier Barsalou-Duval, New Democratic MP Lisa Marie Barron, and Conservative MP Dave Epp all raised the question of pensions immediately after Lamoureux’s opening speech. Barsolou-Duval asked if Lamoureux could tell the House “how many Liberal members would not have been entitled to a pension if the date of the election had not changed.” Barron acknowledged the bill’s effect on MPs’ pensions and declared that the New Democrats would table “an amendment to move this election date back to the original date.” Epp praised the provisions clamping down on foreign interference but argued that the Liberals invoked Diwali as an excuse to divert attention away from their true intention of allowing more of their MPs to qualify for the parliamentary pensions; he pointed out that “these additional seven days would cost Canadian taxpayers millions of dollars.”[6]

Lamoureux hit back and noted that 32 Conservative, 19 Bloc, and 6 New Democratic MPs, in addition to 22 Liberals, would also qualify for their pensions if Parliament amended the schedule. He also accused the Conservatives of “not recognising the Indo-Canadian community and Canadians, many of whom acknowledge and celebrate Diwali.” Finally, Lamoureux insisted that Parliament should enact this bill because “we need to recognize the valuable role Canada plays today and can continue to play in leadership on democracy by supporting such things as the independence of Elections Canada and by looking at ways in which we can strengthen our election laws.”[7] Ironically, of course, changing the date of the next scheduled election by statute and preventing the Chief Electoral Officer from exercising his existing statutory discretion to recommend precisely the same change would seem to reduce what Lamoureux lauds as “the independence of Elections Canada” in the specific case of the election scheduled for October 2025. But the Trudeau government does not wish to take the risk that the Chief Electoral Officer would decide not exercise his existing discretion under section 56.2(5) of the Canada Elections Act poorly and recommend that the Governor-in-Council delay the election by either one day (to Tuesday, 21 October 2025) or seven days (to Monday, 27 October 2025).

Interestingly, however, Bill C-65 would include some general amendments to section 56.2 as well which apply universally and not only to 2025.

6(1) Subsections 56.2(1) and (2) of the Act are replaced by the following:

Alternate day

56.2 (1) If the Chief Electoral Officer is of the opinion that a Monday that would otherwise be polling day under subsection 56.1(2) is not suitable for that purpose, including by reason of its being in conflict with a day of cultural or religious significance or a provincial or municipal election, the Chief Electoral Officer may choose another day in accordance with subsection (4) and shall, no later than March 1 in the year before the year in which the general election is to be held, recommend to the Governor in Council that polling day be that other day and provide the Governor in Council with the reasons for the Chief Electoral Officer’s opinion and recommendation.

For greater certainty

(1.1) For greater certainty, the Chief Electoral Officer may carry out any consultations the Chief Electoral Officer considers appropriate before recommending that 15 polling day be another day.

Publication of recommendation

(2) If the Chief Electoral Officer recommends an alternate day for a general election in accordance with subsection (1), the Chief Electoral Officer shall without delay publish in the Canada Gazette notice of the day recommended and the reasons provided under subsection (1).

6 (2) Subsections 56.2(4) and (5) of the Act are replaced by the following:

Limitation

(4) The alternate day must be either the Tuesday immediately following the Monday that would otherwise be polling day or a Monday in the two weeks before or after the week in which the election would otherwise be held.

Timing of proclamation

(5) An order under subsection (3) shall not be made after September 1 in the year before the year in which the general election is to be held.

Rejection of recommendation

(6) If the Governor in Council rejects the recommendation, the Chief Electoral Officer shall exercise any of the Chief Electoral Officer’s powers under this Act that the Chief Electoral Officer considers necessary for the purpose of enabling electors to exercise their right to vote.[8]

The current statute allows the Chief Electoral Officer to recommend delaying the general election by either one day or seven days by 1 August in the year of a general election (so, for example, by 1 August 2025 for an election in October 2025). But for subsequent scheduled general elections, these amendments would create an entirely different timeline. I shall use a hypothetical election scheduled for October 2029 as an example. In that case, the Chief Electoral Officer would have to recommend changing the date of a general election by 1 March 2028, which the Canada Gazette would have to publish by 1 September 2028; he would now also have to provide the Governor-in-Council an official reason for having made the recommendation and presumably cite a municipal, provincial, or territorial election or a day of cultural or religious significance. The election would normally occur on 15 October 2029 (the third Monday), but the Chief Electoral Officer could recommend changing it to either Tuesday, 16 October 2029, or to either 14 or 7 days earlier or 7 days after. In 2029, that would place the other alternate days as the first, second, or fourth Mondays in October, thus either 1 October, 8 October, or 22 October.

This seems like a strange choice of options given that Canadian Thanksgiving always falls on the second Monday in October! The legislation should not bother listing the Monday before the regular schedule as an option at all, because that would always coincide with Thanksgiving and thus qualify automatically under the existing provision which allows the Chief Electoral Officer to recommend delaying the election if it would otherwise fall on “a day of cultural or religious significance.” This seems poorly thought out. Finally, Parliament would add a new subsection stating expressly that the Governor-in-Council may (which the current statute necessarily implies but does not say outright) reject the Chief Electoral Officer’s recommendation; in that event, the new bill would also reaffirms the Chief Electoral Officer’s authorities elsewhere in the Canada Elections Act to voting more accessible in other ways.

The parliamentary debates have so far not given any indication on the purpose of these changes and why the government believes that the Chief Electoral Officer should have to recommend changing the date of the next scheduled general election so far in advance.

The Chief Electoral Officer’s Current Authority

However, a possibility remains that the Trudeau government genuinely does wish to avoid making the next scheduled general election coincide with Diwali based on the Chief Electoral Officer’s decision on 29 July 2019 not to recommend delaying the general election of October 2019 by one or seven days to accommodate date the Orthodox Jewish holiday of Shemini Atzeret, which coincided with the exact date of the election on 21 October 2019.[9] The Chief Electoral Officer Stephane Perrault noted in his decision that the Canada Elections Act already provides several advance voting days and that any elector can always fill out a special ballot, which would allow Orthodox Jews to vote on a day other than Shemini Atzeret; however, Perrault acknowledged that two of the advance polling days in 2019 also conflicted with the Jewish Sabbath and the festival of Sukkot. Even then, he listed nine days or ranges of days on which Orthodox Jews could cast their ballots and concluded that he would not recommend changing the date of the general election because he must balance the rights of Orthodox Jews with the general “statutory objective to deliver a fair and accessible election to all Canadians.” (That really should say “electors” rather than “Canadians.”) He concluded:

I recognize that maintaining October 21 as election day means that observant Jewish electors will have to vote in one of these alternative ways. They nevertheless have a genuine opportunity to participate in the electoral process. The Act provides considerable flexibility to tailor voting services in ways that assist electors who face challenges, especially where those electors are geographically centred and solutions adapted to the local circumstances, such as voting kiosks, can be developed. As such, I will ensure that I exercise my statutory mandate to protect their ability to vote during the electoral period. […]

In particular, given that observant Jewish electors are mainly located in certain identifiable ridings, this makes it easier for ROs, community relations officers and field liaison officers to put together, under my guidance, a plan for them to vote at advance polls and by way of special ballot. As such, I believe that I can mitigate the impact on their right to vote by providing them with these other opportunities to participate in the electoral process.[10]

Perhaps the Trudeau government wants to avoid putting the Chief Electoral Officer in the position of issuing another such decision, and the possibility that Perrault would grant Hindus and Sikhs this same dispensation in 2025 that he denied to Orthodox Jews in 2019. While Conservative MP Dave Epp mentioned this decision from 2019 in the legislative debates, he did not acknowledge that the Chief Electoral Officer could also use this existing statutory provision to delay the scheduled election in 2025.[11] For the remainder of the debates at Second Reading, MPs only mentioned the Chief Electoral Officer in the context of other provisions of this bill that would task him with preparing reports by 2029 on the feasibility of allowing electors to vote at any polls in their riding and on turning polling day into three consecutive polling days.[12] But no one else ever brought up or alluded to the Chief Electoral Officer’s existing statutory authority to recommend delaying the election by one or seven days. Bloc MP Luc Theriault, for instance, seemed under the impression that Bill C-65 would establish this authority for the first time and did not seem to understand that Parliament had already given the Chief Electoral Officer this discretion from the very start in 2007:

This bill also provides that the Chief Electoral Officer may consider conflicts with another election. This is an important measure. For my part, I do not question the Chief Electoral Officer’s impartiality or logistical ability to organize elections worthy of a self-respecting parliamentary democracy. [13]

In reality, the fixed-date elections law has already done so since 2007.

Backbench Liberal MP Chandra Arya also seemed to presume that the existing statute from 2007 does not already give the Chief Electoral Officer the discretion to recommend changing the date of a general election if it would otherwise fall on a holiday. He also spoke against the Trudeau government’s own rationale that the election cannot fall on the same day as Diwali:

Mr. Speaker, as a Hindu by religion, I do not need the election date to be postponed so I can celebrate my religious holiday. As the member mentioned, there are many religious groups in Canada. There are Jewish Canadians, Buddhist Canadians and Muslim Canadians. To accommodate every single religious day not being affected by election day would be very difficult going forward.

One of the flexibilities proposed in this legislation is to provide the Chief Electoral Officer the flexibility to determine a fixed date on which the election should, depending on the circumstances surrounding that date. It can be similar to provincial or municipal elections. What we are promoting is to provide flexibility. I agree that we cannot start making exceptions based on the religious requirements of various Canadians.[14]

Conclusion

Two possible rationales exist. Either the Trudeau government truly wants to avoid holding an election on Diwali and therefore concluded, based on the Chief Electoral Officer’s reluctance to invoke his existing authority in 2019, that Parliament should simply take the matter out of his hands entirely, or the Liberals had looked at the polls since the third or fourth quarter of 2023 which consistently showed them losing ground and decided to postpone the scheduled election by one week so that various Liberals first elected in 2019 who would probably lose their ridings could qualify for parliamentary pensions. The Liberals themselves clearly anticipated this criticism given that Lamoureux had prepared a tally of the exact numbers of MPs from all parties who would meet the minimum six years of service to qualify for the pension and read it into the Hansard immediately after the opposition raised this line of questions. On balance, I would have to conclude that the more cynical motivation seems more likely than the procedural motivation – if only because the Liberals never brought up that issue themselves. Dominic LeBlanc, almost unique of the Liberal front bench in 2024, can deliver courteous and politic answers that do not offend the opposition or raise the ire of the general public; he could have said something like, “The government wanted to avoid placing the Chief Electoral Officer in the awkward position of having to issue a recommendation to postpone the election under the existing legislation and thought that Parliament should rule on the matter instead.”

The House of Commons left a gap of two months between First Reading (20 March) and Second Reading (31 May); in addition, PROC only held its first meeting to study Bill C-65 on 31 October even though the Commons adopted at Second Reading in June. This slow progress suggests that the government has not made this bill a top priority in a chaotic minority parliament.

The other measures in Bill C-65 that would oblige the Chief Electoral Officer to report to the Speaker of the House of Commons how a three-day polling period for general elections and allowing electors to vote in any poll in their ridings could be implemented after 1 January 2029 ultimately flowed from the confidence-and-supply agreement that the Liberals and New Democrats established in March 2022 and from which the New Democrats withdrew in September 2024.[15]

Making democracy work for people

Recognizing our shared commitment to maintaining the health of our democracy and the need to remove barriers to voting and participation, we will work with Elections Canada to explore ways to expand the ability for people to vote, such as:

An expanded “Election Day” of three days of voting.
Allowing people to vote at any polling place within their Electoral District.

Improving the process of mail-in ballots to ensure that voters who choose this method of voting are not disenfranchised.

We commit to ensuring that Quebec’s number of seats in the House of Commons remains constant.[16]

This inauspicious provenance could explain why the Trudeau government and PROC seem to have lost interest in pursuing Bill C-65 expeditiously. All in all, there is a good chance that Parliament will not pass Bill C-65 at all and that it will die on the Order Paper upon a prorogation or dissolution of this rotten and increasingly dysfunctional 44^th Parliament.

Similar Posts:

Notes

[1] Canada Elections Act, S.C. 2000, c. 9, at section 56.1; An Act to Amend the Canada Elections Act, S.C. 2007, c. 10, at sections 1-2.

[2] Interpretation Act, R.S.C., 1985, c. I-21, at section 35. It says: “province means a province of Canada, and includes Yukon, the Northwest Territories and Nunavut.”

[3] House of Commons of Canada, 44^th Parliament, 1^st Session, 70-71 Elizabeth II – 1-2 Charles III, 2021-2022-2023-2024, Bill C-65, An Act to Amend the Canada Elections Act, First Reading, 20 March 2024, at section 5. The underlines appear in the original to indicate precisely which words would change or be added.

[4] Canada. Privy Council Office, Democratic Institutions, “Proposed Amendments to the Canada Elections Act,” 20 March 2024 (modified 11 July 2024) <https://www.canada.ca/en/democratic-institutions/news/2024/03/proposed-amendments-to-the-canada-elections-act.html>.

[5] Kevin Lamoureux (the Parliamentary Secretary to the Leader of the Government in the House of Commons), “Government Orders: Electoral Participation Act,” House of Commons Debates, 44^th Parliament, 1^st Session, Volume 151, No. 322, Friday, 31 May 2024, at pages 24207-24209.

[6] Xavier Barsalou-Duval, Lisa Marie Barron, and Dave Epp, “Government Orders: Electoral Participation Act,” House of Commons Debates, 44^th Parliament, 1^st Session, Volume 151, No. 322, Friday, 31 May 2024, at pages 24209-24211.

[7] Kevin Lamoureux (the Parliamentary Secretary to the Leader of the Government in the House of Commons), “Government Orders: Electoral Participation Act,” House of Commons Debates, 44^th Parliament, 1^st Session, Volume 151, No. 322, Friday, 31 May 2024, at page 24241.

[8] House of Commons of Canada, 44^th Parliament, 1^st Session, 70-71 Elizabeth II – 1-2 Charles III, 2021-2022-2023-2024, Bill C-65, An Act to Amend the Canada Elections Act, First Reading, 20 March 2024, at section 6(1).

[9] Elections Canada, “Decision – Recommendation of the Chief Electoral Officer – Date of the General Election,” 29 July 2019. <https://www.elections.ca/med/spe/decision2919_e.pdf>

[10] Elections Canada, “Decision – Recommendation of the Chief Electoral Officer – Date of the General Election,” 29 July 2019. <https://www.elections.ca/med/spe/decision2919_e.pdf>

[11] Dave Epp, “Government Orders: Electoral Participation Act,” House of Commons Debates, 44^th Parliament, 1^st Session, Volume 151, No. 322, Friday, 31 May 2024, at page 24212.

[12] See: Dominic LeBlanc (Minister for Democratic Institutions), “Government Orders: Electoral Participation Act,” House of Commons Debates, 44^th Parliament, 1^st Session, Volume 151, No. 333, Monday, 17 June 2024, at page 25054, 25055, 25057

[13] Luc Theriault, “Government Orders: Electoral Participation Act,” House of Commons Debates, 44^th Parliament, 1^st Session, Volume 151, No. 334, Tuesday, 18 June 2024, at pages 25136, 25137

[14] Chandra Arya “Government Orders: Electoral Participation Act,” House of Commons Debates, 44^th Parliament, 1^st Session, Volume 151, No. 334, Tuesday, 18 June 2024, at page 25141.

[15] New Democratic Party, “Singh Ends Supply and Confidence Agreement with Governing Liberals,” 4 September 2024. <https://www.ndp.ca/news/singh-ends-supply-and-confidence-agreement-governing-liberals>

[16] Prime Minister of Canada, “Delivering for Canadians Now,” 22 March 2022. <https://www.pm.gc.ca/en/news/news-releases/2022/03/22/delivering-canadians-now>; New Democratic Party, “Delivering for Canadians Now,” 22 March 2022. < https://xfer.ndp.ca/2022/Documents/2022-03-23_Delivering_for_Canadians_Now_EN.pdf>

1 Response to More Fixed-Date Election Foibles: Delaying the Scheduled Federal General Election by One Week

Rand Dyck says:

2024/11/03 at 10:09

Nova Scotia finally joins the rest and passes a Fixed Elections Day Act, and then ignores it. You were so right to point this practice out years ago!!!

LikeLike